Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200807
BRANCH OF SERVICE:  Army	BOARD DATE:  20130731
SEPARATION DATE:  20020902

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty specialist/E-4 (75B10/AFSC, JOB) medically separated for posttraumatic stress disorder (PTSD) and mood disorder secondary to a motor vehicle accident (MVA); right tibial fracture, now healed, with residual of intramedullary nail; and, left femur fracture, now healed, with residual of intramedullary nail. The CI was involved in a serious MVA on or about 18 December 2000 and was emergently taken to a civilian hospital where she underwent surgeries to repair several long bone fractures she had sustained. She was subsequently transferred to Walter Reed Army Medical Center (WRAMC) and was admitted to the orthopedic surgery service. She underwent another right tibial surgery, and then demonstrated good progression in healing; however, she required healing time for 12-18 months after the injury. While inpatient, the CI was evaluated by the psychiatry consultation liaison service in February 2001 for complaints of anxiety, nightmares, and intrusive thoughts of the accident. The CI’s conditions could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or to satisfy physical fitness standards. She was issued a permanent U3/L3 profile for her orthopedic conditions and referred for a Medical Evaluation Board (MEB). The MEB forwarded six medically unacceptable conditions, and one medically acceptable condition, as reflected in the rating comparison chart below, to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated PTSD and mood disorder secondary to a MVA; right tibial fracture, now healed, with residual of intramedullary nail; and, left femur fracture, now healed, with residual of intramedullary nail, as unfitting, rated 10%, 0% and 0% respectively with likely application of the Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have been unable to keep a job.  My health is getting worse.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting PTSD and mood disorder secondary to a MVA; right tibial fracture, now healed, with residual of intramedullary nail; and, left femur fracture, now healed, with residual of intramedullary nail conditions are addressed below. The CI made no specific contentions therefore no additional conditions are within the Board’s defined DoDI 6040.44 purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020709 | VA - ( ~ 4 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
PTSD w/ Mood D/O | 9411 | 10% | PTSD* | 9411 | 50%* | VAMC Progress Notes*
Rt Tibial Stress FX S/P Surgery | 5299-5262 | 0% | Rt Tibia FX | 5262 | 10% | 20021230
Lt Femur FX S/P Surgery | 5299-5255 | 0% | Lt Femur FX | 5255 | 20% | 20021230
Cognitive D/O | Not Unfitting | Cerebral Concussion | 8045-9304 | 10% | 20021230
Rt Scaphoid FX | Not Unfitting | Rt Scaphoid FX | 5299-5215 | 0% | 20021230
Lt Peroneal Nerve Injury | Not Unfitting | No Corresponding VA Entry
No Additional MEB/PEB Entries | Other x 7 | 20021230
Combined:  10% | Combined:  80%*
VA Rating Decision (VARD) dated 20030403 did not include PTSD.  Combined rating was 50%.
* VARD dated 20040126 added PTSD rated as above, based on VAMC Progress Notes: as the CI had failed to appear for the scheduled VA C&P Exam for PTSD and the combined rating increased to 80% retroactive to DOS.

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that her service-incurred conditions has had on her current earning ability and that her health has gotten worse.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The Board acknowledges that the service treatment records (STR) and DVA treatment records were not available in the evidence before it, and could not be located after the appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  The missing evidence will be referenced below in relevant context.

PTSD with a Mood Disorder Condition. The PEB rating in this case fell before the effective date of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VASRD §4.129. Furthermore, IAW DoDI 6040.44 and DOD guidance (which applies VASRD §4.129 to all Board cases), the Board is obligated to consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.” The evidence is clear in this case that all of the elements for application of §4.129 were met. Thus, in compliance with the above directives, the Board must recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation. The only sources of comprehensive evidence on which to base either the TDRL or permanent rating recommendations in this case are the psychiatric addendum completed 7 months prior to separation and the VARD which cited the VA treatment records for March 2003 to November 2003. These treatment records are within the 6-month post-TDRL period for the Board to judge the stress of transition to civilian life, which is the key intent of §4.129 and a significant element underlying the Board’s permanent rating recommendation.

While hospitalized for her injuries the CI was evaluated by psychiatry in April 2001 for symptoms consistent with PTSD.  She reported flashbacks, intrusive thoughts of the accident, intense anxiety and distress when reminded of the accident (as when riding in car and seeing tractor-trailers pass other vehicles, or when discussing the accident). She denied suicidal or homicidal ideation. The only mental status exam (MSE) in the STR was completed 17 months prior to separation. Pertinent exam findings included an overall mood that was euthymic, although her affect changed to become sad and tearful when taking about the accident. Her memory, recall, and intellectual ability were good. Her thought processes were coherent, logical and goal directed. Insight and judgment were intact. She denied suicidal, homicidal or paranoid ideation and denied auditory or visual hallucinations. The CI showed improvement with therapy from April 2001 to November 2001 with medications, support groups and individual counseling. However, she continued to have relapses with recurrence of symptoms (depression, irritability, and anxiety) and reactivation of distress/intrusive thoughts about her accident whenever it came up in conversation. All this was complicated with difficulties with the physical demands of caring for her 3-year-old son as she had been on an unaccompanied tour in Korea. She was living with her mother at the time, who had been caring for her son.

At the MEB psychiatry exam performed 7 months prior to separation, the CI reported continued problems with depression, anxiety, irritability and mood labiality. In fact, she became increasingly symptomatic after meeting with her attorney to discuss the legal case relating to the accident. There were no suicidal or homicidal ideations or psychosis. Her psychiatric medication continued to be escalated and she continued to be actively involved in a support group. She had no hospitalizations up to this point for this condition. The MEB did not document an MSE. The examiner diagnosed three Axis I diagnoses; PTSD, chronic, marked; impairment for social and industrial adaptability considerable; mood disorder due to traumatic brain injury and orthopedic injuries with major depressive like episode marked; impairment for social and industrial adaptability; and cognitive disorder not otherwise specified mild manifested by variable concentration and verbal fluency, mild; impairment for social and industrial adaptability. A Global Assessment of Functioning (GAF) of 58 was assigned. 

A psychiatric VA Compensation and Pension (C&P) exam was not performed after separation and the CI failed to report for her scheduled examination. There was a general C&P exam on 30 December 2002, which documented that she was living apart from her mother with her 3-year-old son and was able to clean, cook, grocery shop and drive. The VARD used VA Medical Center Progress Notes from March 2003 to November 2003 to arrive at a rating decision. The VARD indicated that the treatment notes documented a diagnosis of PTSD due to personal trauma. The treatment records also documented that the CI had been hospitalized from 1 October 2003 to 7 October 2003 and was discharged with a GAF of 51. The discharge summary noted symptoms of anger, memory deficit and impulse control, and that the CI took medication for the condition. The 2009 C&P exam documented the CI had moved back in with her mother, was not caring for her son, cooking or cleaning due to pain and depression.

The Board directs attention to its rating recommendation based on the above evidence. The Board notes that all mental health diagnoses are rated IAW the same criteria of VASRD §4.130. All members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of separation, and therefore the minimum 50% TDRL rating (as explained above) is applicable. In regards to the permanent rating recommendation, all members agreed the evidence did not approach the 70% rating and well exceeded the 10% rating. Therefore deliberations settled on arguments for a 50%, (occupational and social impairment with reduced reliability and productivity) for which the VA assigned, versus a 30% (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) for a permanent rating recommendation. Deliberations ensued with regards to the evidence with respect to a 50% rating versus a 30% in the absence of MSE and occupational evidence. The Board agreed the 50% rating is defensible in lieu of the hospitalization within 6 months after separation and in lieu of a GAF assignment of 51 connoting serious impairment. The 30% rating is also defensible in lieu of the ability to live by herself, solely caring for her son and performing independent activities of daily living during this same timeframe, which was much improved from the date of separation. After due deliberation, in consideration of all evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends 30% as the fair permanent separation rating for PTSD in this case.

Left Femur with Residual Intramedullary Nail Condition.  The narrative summary (NARSUM) notes documented the CI was involved in a significant MVA which required extrication and emergent surgical treatment of a closed left transverse femur fracture (left upper leg).  After being stabilized, she was moved to WRAMC for postoperative and rehabilitative care.  She had no further postoperative complications and progressed well with an extensive rehabilitation, lasting over 12 months.  However, she continued to have persistent pain of the left upper leg and right lower leg with prolonged ambulation.

At the MEB exam, the CI reported the inability to lay on her left side secondary to her hip pain, could not walk from the medical holding company barracks to the gym without taking the narcotic based pain medication OxyContin, nor could she run jump or stand without pain.  She was intermittently walking without a cane.  The MEB physical exam noted she ambulated with no device with the exception of occasional straight cane in her left hand, 5 of 5 motor strength, normal sensation, and symmetric upper and lower extremity reflexes.  X-rays revealed status post (s/p) open reduction and internal fixation (ORIF) of the left femur and the hardware was intact.  At the C&P exam the CI reported she was unemployed, lived alone with her 3-year-old son, did the cleaning, cooking and grocery shopping.  The C&P exam demonstrated she was walking without assistive devices, was able to dress and undress without difficulty, was able to walk on heel and toes and partially squat, and was able to get on the examination table without difficulty.  X-rays, cited in the VARD, revealed a rod and screw through the upper portion of the femur and inter trochanteric region, mild separation of the pubic symphysis and mild deformity of the mid femur.  The examiner diagnosed healed fracture left femur with rotational limitation of motion of the left hip.

The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Goniometric ROM –
degrees

MEB ~ 3.5 Mo. Pre-Sep

VA C&P ~ 4 Mo. After-Sep

L/R Hip (Thigh) | L Hip | R Hip | L Hip | R Hip
Flexion (0-125) | 105 | 100 | 120 | 125
Extension (10-20) | 20 | 20 | # |
Abduction (0-45) | 20 | 20 | 50 | 60
Adduction (0-45) | 30 | 20 | # |

External Rotation (0-45⁰)

30

30

40
With pain

45

Internal Rotation (0-35⁰) | 20 | 20 | 30 | 30
Comment | Silent to painful motion | Painful motion
§4.71a Rating | 0% | | 10%* |

*IAW §4.59 painful motion

The Board directs attention to its rating recommendation based on the above evidence.  The Board agreed the TDRL rating recommendation would be based from the MEB evidence and the post-TDRL recommendation would be based from the VA evidence.  The PEB and VA applied the same VASRD codes for the left femur condition and both were IAW VASRD §4.71a—schedule of ratings–musculoskeletal system.  The PEB assigned a rating of 0% coded 5255 (femur, impairment of, malunion) for normal gait and motor strength with residual intramedullary nail which was the disqualifying element. The VA assigned a 20% rating for moderate hip or knee disability, mild deformity of the mid femur on X-ray and painful rotational limitation of motion of the left hip. The Board agreed the ROM of the left and right hip for abduction and internal rotation are comparable. Therefore, the Board agreed the evidence does not support a compensable loss of ROM nor painful motion to meet a minimum of a 10% rating at the time of TDRL placement or permanent separation. However, in consideration of VASRD §4.40 (functional loss) the Board agreed the evidence supports a 10% rating at the time of TDRL placement with the occasional use of a cane and chronic use of narcotic pain medication. At the time of permanent separation there is evidence of non-compensable painful motion for a minimum of a 10% rating. There is no evidence of flare-ups or incapacitating episodes to support additional rating or a 20% rating under the 5003 code (arthritis, degenerative). There is no viable approach to a higher rating for the left upper leg, which was countenanced by the VASRD in the absence of hip ankylosis, joint laxity or left knee pathology. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% at the time of TDRL entry and at permanent separation for the left femur fracture with an intramedullary nail condition.

Right Tibial Fracture with Residual Intramedullary Nail Condition.  The NARSUM notes documented the CI was involved in a significant MVA which required extrication and emergent surgical treatment of an open right tibial fracture (right lower leg) at a civilian hospital.  She also broke the right fibula (right lower leg).  After her transfer to WRAMC she underwent another tibial surgery due to suboptimal placement of the tibia nail.  She progressed with a prolong rehabilitation however continued to have persistent pain of the right lower leg with prolonged ambulation.  She also reported swelling in her ankles.

At the MEB exam, the CI reported inability to walk from the medical holding company barracks to the gym without taking the narcotic-based pain medication OxyContin, nor could she run jump or stand without pain. The pertinent exam findings documented tenderness along both legs and bilateral knee flexion of 130 degrees (140 normal) without pain. X-rays revealed status post ORIFation of the right tibial fracture with good callus formation and the hardware was intact. At the VA Compensation and Pension (C&P) exam, the CI reported she was unemployed, lived alone with her 3-year-old son, did the cleaning, cooking and grocery shopping. The bilateral knee exam documented no ligament or meniscal injuries, no localized tenderness, and no deformity in the examination of the right tibia. X-rays cited in the VARD, revealed intramedullary rod and screws through the length of the right tibia. The examiner diagnosed healed fracture right tibia and fibula.

The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Goniometric ROM –
L/R Ankle

MEB ~ 3.5 Mo. Pre-Sep

VA C&P ~ 4 Mo. After-Sep

Right Dorsiflexion  (0-20) | 5⁰ | 20⁰
Right Plantar Flexion (0-45) | 30⁰ | 20⁰
Left Dorsiflexion (0-20) | 0⁰ | 20⁰
Left Plantar Flexion (0-45) | 30⁰ | 20⁰
Comment | |
§4.71a Rating | 0% | 10%

The Board directs attention to its rating recommendation based on the above evidence.  The Board agreed the TDRL rating recommendation would be based from the MEB evidence and the permanent rating recommendation would be based from the VA evidence.  The PEB and VA applied the same VASRD codes for the right tibial fracture condition and both were IAW VASRD §4.71a—schedule of ratings–musculoskeletal system. The PEB assigned a 0% rating for normal gait and motor strength of the lower extremity. The VA assigned a 10% rating for slight disability of the knee or ankle. The Board notes at the time of the MEB exam while the dorsiflexion of 5 degrees of the right ankle is a significantly low value when compared to the left of 0 degrees they are comparable. Furthermore, in the absence of a gait exam, use of a cane in the right hand or other corroborative ROM data, the Board agreed the dorsiflexion ROM data is not probative. The bilateral MEB knee exam is absent for compensable, painful limitation of motion. However, again in consideration of VASRD §4.40 (functional loss), members agreed the evidence of painful ambulation and use of pain medications with a residual hardware supports a 10% minimum rating IAW diagnostic code 5003 (arthritis, degenerative) and/or 5262 at the time of TDRL placement. At the time of permanent separation the VA evidence supports non-compensable loss of plantar flexion and residual hardware which supports the 10% minimum rating IAW code 5003 and/or 5262. There is no evidence of incapacitating episodes for a higher 20% rating under code 5003. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right tibia fracture with intramedullary nail condition at the time of TDRL placement and permanent separation.	

BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. As discussed above, PEB reliance on DoDI 1332.39 for rating PTSD condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. The PEB did not apply VASRD §4.129 to the CI’s PTSD adjudication as required by NDAA 2008 for which the Board provides remedy. In the matter of the PTSD with a mood disorder condition, the Board unanimously recommends an initial TDRL rating of 50% IAW VASRD §4.130; and the Board majority recommends a 30% permanent rating at 6 months, coded 9411, IAW VASRD §4.130. The single voter for dissent (who recommended adopting the VA rating at 50%) did not elect to submit a minority opinion. In the matter of the left femur fracture condition, the Board unanimously recommends a disability rating of 10% at the time of TDRL placement and at permanent separation coded 5003-5255, IAW VASRD §4.71a. In the matter of the right tibia fracture condition, the Board unanimously recommends a disability rating of 10%, at the time of TDRL placement and at permanent separation coded 5003-5262, IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
PTSD w/ Mood D/O | 9411 | 50% | 30%
Rt Tibial Stress FX S/P Surgery | 5003-5262 | 10% | 10%
Lt Femur FX S/P Surgery | 5003-5255 | 10% | 10%
COMBINED (w/ BLF) | 60% | 50%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130017873 (PD201200807)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the day following the six month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 50% effective the day following the constructive six month TDRL period.  

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1200807